The issue of insufficiently intense civil judicial protection of intellectual property (IP) has long drawn attention. This has mainly been manifested as follows: (1) difficulty in adducing the evidence relating to the compensation of losses, such that, after the rights holder prevails at trial, the measure of damages is usually insufficient to make up the actual losses incurred by the rights holder, and is sometimes even less than reasonable expenditures incurred by the rights holder in safeguarding his or her rights; and (2) the rights holder is powerless to timely and effectively put a stop to the infringement and is only able to compel the infringer to do so after the entry into effect of the judgment, with some rights holders losing their competitive advantages even before securing a winning judgment.
These issues not only reduce rights holders’ willingness to safeguard their rights, but also further embolden infringers. Insufficient protective efforts not only make it impossible for China to demonstrate to the world a resolute stance on performing its IP protection obligations, but also make it impossible to provide sufficient assurance for the transformation of China into an “innovative” country. As a long-time IP practitioner, the author has noticed that the above-mentioned issues are not new and have drawn the attention of legislative and judicial authorities. In 2016, the author noticed that certain typical cases (summarized below) have shown signs that judicial authorities are further intensifying their efforts to protect IP:
Application of the system of “impediments to the adducement of evidence” leads to repeated record breaking for damages awarded for infringement.
In Maco Group Co Ltd v Beijing Xiujie Xinxing Building Materials et al, a case involving infringement of the exclusive right to use a registered trademark, and in Beijing Watchdata System v Hengbao, an invention patent infringement case, the Beijing Intellectual Property Court (BIPC) rendered, in November and December 2016, respectively, judgments awarding damages of RMB10 million (US$1.45 billion) and RMB50 million, respectively, rewriting the record for compensation by that court in two consecutive cases.
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Han Yufeng is a senior associate at Beijing Rui Bai Law Firm
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